Date: Tue, 25 Feb 97 18:33:22 EST
From: ngltf@ngltf.org
Subject: D'Emilio OP-ED: Sodomy Law Repeal
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National Gay and Lesbian Task Force
OPINION-EDITORIAL
Contact: John D'Emilio 202/332-6483 x3302 jdemilio@ngltf.org
2320 17th Street NW, Washington, DC 20009
http://www.ngltf.org
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The following is an opinion/commentary written by Dr. John D'Emilio, the
director of the National Gay and Lesbian Task Force's Policy Institute. This
month's commentary, "Back to Basics," is a discussion of sodomy law repeal and
its continuing importance as a key movement goal.
Dr. D'Emilio is a noted historian and author. His works include "Making Trouble:
Essays on Gay History, Politics and the University" (Routledge, 1992), "Sexual
Politics, Sexual Communities: The Making of a Homosexual Minority in the United
States, 1940-1970" (University of Chicago Press, 1983), and he is the co-author
of "Intimate Matters: A History of Sexuality in America" (Harper and Row, 1988).
He is currently working on a biography of the late Bayard Rustin.
D'Emilio's monthly column is available the last week of each month. Please
publish or distribute this piece. Photos of Dr. D'Emilio are available by
contacting Tracey Conaty at 202/332-6483 x3303.
......................................................................
Back To Basics: Sodomy Law Repeal
By John D'Emilio
Director
NGLTF Policy Insitute
The military ban . . . the freedom to marry . . . the Rainbow curriculum . . .
workplace partnership benefits . . .
As our movement grows stronger, as more of us come out earlier and stay out for
decades, our vision of equality for gay, lesbian, bisexual and transgender
people expands. We can see farther than we could a generation ago, and we
expect more. The cutting-edge issues that seem to beckon us toward new
frontiers are the ones that grab our attention and our energy.
Viewed from that perspective, what could be less interesting or more tired than
sodomy law repeal? The police, after all, are not regularly barging into our
bedrooms and leading us away in handcuffs. Aren't the remaining sodomy laws
merely relics of a distant past, technically enforceable but meaningless in
practical terms?
Don't kid yourself. Even if not a one of us ever again got arrested for
violating the sodomy statutes, they would weigh like a ton of bricks on our
shoulders. Getting rid of them has to be a top priority.
The movement for sodomy law repeal got started in the 1950s. The impulse came
as much from a legal profession interested in modernizing the penal code by
eliminating "victimless" crimes as it did from a gay and lesbian movement still
in its infancy. In 1961, eight years before the Stonewall Rebellion, Illinois
became the first state to repeal. A couple of other states did so in the 1960s;
the repeal movement accelerated in the 1970s; and then it slowed considerably in
the 1980s. Today, twenty-nine states and the District of Columbia are "free"
states without sodomy laws; the remaining twenty-one states still criminalize
all homosexual sex.
The pattern of repeal is interesting. In the 1960s, 1970s, and early 1980s,
virtually all of the repeals came through a rewriting of a state's entire penal
code. In other words, sodomy law reform was hidden beneath an avalanche of
changes in the criminal law and was not the focus of public controversy. To my
knowledge, only two states repealed the law as a freestanding measure after full
legislative debate. As the extremist right got organized in the 1980s, it
became harder to repeal these statutes legislatively. Then, in 1986, in the
infamous case of Bowers v. Hardwick, the Supreme Court upheld the
constitutionality of sodomy statutes. Since then, sodomy laws have fallen not
through legislative repeal but because energetic queer lawyers have challenged
them based on the provisions of state constitutions.
Even though the remaining laws are not often enforced, they function as an
excuse for other oppressive measures. Here are some recent examples:
ù Judges in custody cases, as with Sharon Bottoms in Virginia, use the
criminality of homosexual behavior as the basis for declaring a mother or father
unfit.
ù at George Mason University last fall, a crusading member of the governing
board forced the elimination of a line item in the budget to fund a resource
center for gay, lesbian, bisexual, and transgender students. The reason? The
state's sodomy law.
ù in Arizona this January, a legislator introduced a bill to ban the use of
school facilities by any group that supports illegal activity. His target:
gay, lesbian, and bisexual student groups. His rationale: the state sodomy
statute.
ù for years, the criminality of homosexual acts has restricted the ability of
AIDS activists to use public monies for effective AIDS educational efforts.
Whether or not a state has a sodomy law also seems to affect how far it goes in
other areas of concern to us. For instance, one out of five "free" states
include sexual orientation in their civil rights statutes, but only one out of
seven sodomy states do. One out of five free states have executive orders from
the governor banning sexual orientation discrimination, but only one out of ten
sodomy states do. Almost half of the free states punish hate crimes based on
sexual orientation in contrast to only one-quarter of the sodomy states. And,
the contrast is most dramatic in the area of child custody. The National Center
for Lesbian Rights found courts supportive of granting us custody rights in more
than one out of four free states in comparison to only one out of twenty sodomy
states.
The existence of a sodomy law in a state thus tends to be a good marker of a
hostile climate. It also serves as a barrier making other kinds of change more
difficult to achieve. Until we eliminate them entirely, we run the very real
risk of a right-wing effort to recriminalize homosexual acts in today's free
states. And, as long as these laws exist anywhere in the United States, the
stigma of criminality remains heavy in our culture, hanging like an albatross
around our necks.
..............
The National Gay and Lesbian Task Force is a progressive organization that has
supported grassroots organizing and pioneered in national advocacy since 1973.
Since its inception, NGLTF has been at the forefront of virtually every major
initiative for lesbian and gay rights. In all its efforts, NGLTF helps to
strengthen the gay, lesbian, bisexual and transgender movement at the state
level while connecting these activities to a national vision for change.
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